After suicides, lawyers grapple with cyberbullying laws

March 14, 2016

NEW YORK (Reuters) – A series of high-profile teen suicides in recent years have prompted lawmakers, prosecutors and educators to address the growing problem of cyberbullying.

At a forum on Wednesday at Rutgers University, legal and policy experts said that state and federal laws are struggling to keep up with the dizzying pace of technological advances and the new kinds of online bullying they make possible. Tyler Clementi was a freshman at Rutgers before taking his own life in 2010 after learning that his roommate, Dharun Ravi, used a Web cam to spy on his sexual tryst with another man.

“You can do a lot of damage very quickly with these new technologies,” said defense lawyer Rubin Simins at Wednesday’s event. Simins represented Molly Wei, a friend of Ravi who was charged with helping him broadcast the video and avoided jail time in exchange for testifying. Ravi was convicted last year on 15 counts, including invasion of privacy and hate crimes, and sentenced to 30 days in jail. Both sides have appealed.

The case sparked a national debate over how aggressively cyberbullying should be prosecuted. In New Jersey, cyberbullying is not a crime. Prosecutors charged Ravi in part under the state’s hate crime law, known as bias intimidation. Retired New Jersey state Judge Glenn Berman, who presided over the case, said lawmakers told him after the trial they never envisioned the statute applying to that type of case.

The law, like hate crime statutes in most states, increases the potential jail sentence when attached to an underlying crime. Under the bias intimidation law, a jury can convict a defendant in two ways: by concluding that he or she targeted the victim out of bias, or by finding that the victim believed he or she had been targeted for that reason. The latter provision is “muddled,” Berman said, since it ignores the defendant’s intent.

In January, in an unrelated case, the state’s highest court agreed, ruling that provision was unconstitutional unless prosecutors can show the defendant intended to act out of bias. That could invalidate at least one count of conviction against Ravi on appeal, though the jury found he acted with knowledge or purpose for three other hate crime charges.

‘NO CLEAR LINE’

Brian Sinclair, who heads the computer crimes unit for the Bergen County prosecutor’s office in New Jersey, said it can be difficult to determine when cyberbullying rises to the level of a crime. “I don’t think a young person always understands what he’s doing when he hits send, post, tweet,” he said. The uncertainty extends to civil liability as well.

After the Clementi suicide, New Jersey passed an anti-bullying law that requires schools to develop protocols to address bullying, including cyberbullying, a move that several other states have followed or considered. That, however, could increase schools’ potential liability for bullying incidents if victims can show that their schools did not do enough to stop it, said Elizabeth Jaffe, a professor at John Marshall Law School who has written about bullying.

Last week, the parents of California teen Audrie Pott, who they said killed herself after classmates shared a photo of her being sexually assaulted, filed a notice that they intend to sue school officials for mishandling their daughter’s complaints. The officials claimed she never reported the bullying before or after the alleged assault. In 2011 California passed new laws that require schools to have policies for addressing bullying complaints, after a gay teenage boy who was bullied committed suicide. Emily Bazelon, a journalist who recently published a book on bullying, “Sticks and Stones,” said schools across the country are grappling with whether they have the authority to discipline students for conduct that occurs outside of school, and federal courts are divided on the issue. “Eventually, the Supreme Court is going to have to take one of these cases,” she said. “There is no clear line.”

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